June 7, 2006

Said Senator Rick Santorum, who's pushing the constitutional amendment against gay marriage. "It is just an issue that people just feel uncomfortable talking about. It's something that maybe in some respects they feel like, why do we even have to? Why is this even an issue?"

He, of course, goes on to defend the posturing in the Senate, which any sensible onlooker can see is about motivating social conservatives to vote for Republicans this fall. The assumption must be that these folks are too dumb to see what a hollow stunt it is. As for the rest of us, presumably we're supposed to acknowledge political realities and avert our eyes.

44 comments:

"...which any sensible onlooker can see is about motivating social conservatives to vote for Republicans this fall..."

Althouse you have never been able to debate this issue rationally. Instead you just make statements like the one above. You provide great analysis on most issues, but on this issue you consistently fall short.

It is clearly obvious that the federal judiciary can put a stop to the large majorities of state voters who want to limit traditional marriage to its traditional form with the stroke of a pen. In a country where we have cases like Dred Scott, Roe vs. Wade, Kelo, and judges giving child molesters no prison time because they are too short, anything can happen.

Didn't a federal judge recent strike down the gay marriage ban in Nebraska - it is already happening.

I will go out on a limb here and state that a majority of people in the U.S., both Republican and Democrat, are opposed to gay marriage, unlimited abortion, etc. I further feel comfortable stating that because of leniency in the judicial system that gives a walk to sex offenders who then go out and rape and kill again the electorate is taking a hard line.

The party that goes with spirituality and a no-nonsense approach to law and order will win the elections looming on the hoizon.

If the Democrats didn't react to this tactic like a starving lion given an insane man, the tactic's transparency would be ever more clear.

You give Dems way too much credit. My Democrat senator, Mary Landrieu, voted against this last time out, but now, with the considerable demographic changes to New Orleans post-Katrina, she's looking at having to swing more conservative north Louisiana Baptists her way come re-election time, so guess what? She considering changing her vote, despite the fact that the state has already passed the same type of amendment to its own constitution.

The argument that this is about states' rights is absolute bunk. It's about pandering to anti-gay sentiments and fears. It's about holier-than-thouness. Next up, flag burning. Thank God we have nothing meaningful to worry about in this country.

On the political motivation: this is about the Maryland, Delaware and New Jersey Senate races. In Maryland the African-American vote, especially in Prince Georges County, is decidedly against gay marriage and this will add wind to Steele's sails in his attempt to get African Americans to vote Republican for the first time. With regards to Delaware and New Jersey, because of the handling of the Alito confirmation by the Dems, especially Biden, the Catholic vote, which was traditionally Democratic, is very prepared to continue its drift towards the Republican party. The gay marriage issue is but one more nail in the coffin. If the Dems. lose these three races, they lose seats in the Senate in 2006. In neighboring Pennsylvania, this debate gives Santorum's opponent, who I believe is against abortion, and a Democrat, another difficult choice to make. Choosing means losing votes. In any case, I for one don't mind politicians being political, nor do I think spending three days debating this issue is problematic. But I take Cheney's side on the subastance of this debate, not Bush's.

Dave, I don't think they are distinct issues. The reason people don't like to talk about marriage, whether gay or otherwise, is precisely the fault of gay advocacy groups. It is illegal, according to most companies EEOC departments, to talk about such issues in the workplace.

The advocacy groups then want to talk about their situation to a group of people who would be sympathetic to their plight if they were legally allowed to discuss it. This fails the "is it fair?" doctrine of reasonableness.

Fairness is the unifying factor in many of the issues of the day. Apply it to immigration, gays, criminal justice, estate taxes, terrorism, Solomon Ammendment, etc., and it all points to the failings of a culture immersed in cultural relativism.

"....The argument that this is about states' rights is absolute bunk. It's about pandering to anti-gay sentiments and fears...."

This statement is pure bunk. It is not bigotry as Elizabeth would like to claim it is. She is trying too divert your eyes using a smear from the real issue. The real issue is that there is a very likly possibility that the federal judiciary will discover in the U.S. Consititution a right to gay marriage. People like Elizabeth know this... not only do they know it but they want it to occur because they also know that a large majority of Americans oppose it - thus they realize that courts are the only logical avenue.

The gay lobby should instead start working to change public opinion rather than just demanding action. If they do it right, perhaps they will get gay marriage through the legislative process - a law that is accepted by the public and not imposed by a minority of radicals

The proposed constitutional amendment is a logical response to a runaway judiciary. If we did not have a judiciary that made outrageous decisions there would be no need for an amendment.

I don't have any strong views about gay marriage one way or the other. But I am struck by how quickly this has become a topic that is supposedly too awkward or embarrassing for Senators to engage it on the Senate floor.

Ann says that the Senate debate is all "posturing," and that the Senators pressing the debate assume that Rep voters are "too dumb to see what a hollow stunt it is." It's a "stunt" only in the sense that the votes to pass it are not there. By that standard, most of what happens in Congress has been rendered illegitimate. Since that's where your argument leads, perhaps you need to reconsider.

All of the discussion about gay marriage, at least as far as the courts have been concerned up to now, has been framed in constitutional terms. If the legal arguments about gay marriage are constitutional in nature, and it is legitimate for the courts to entertain them (as it clearly is), it doesn't make any sense to say that it is illegitimate -- a "stunt" fit only to fool "folks [who] are too dumb" -- for the legislature to take up the same topic in the same way. So what that it has no chance of passing. You can't be serious in suggesting that the touchstone distinguishing legitimate legislative debate from a "stunt" fit only to fool "folks [who] are too dumb" to understand what is REALLY going on, is whether the votes are already in hand to pass whatever is being debated.

Why do you think it is legitimate for courts to consider constitutional arguments addressed to the subject of gay marriage, but not the political branches as well? Aren't Senators also sworn to uphold the constitution, and (unlike courts) empowered to propose amendments to it? Since the constitution obviously never mentions gay marriage, do you think it was a "stunt" for the first lawyer to press a constitutional argument and present it to a court? Would it have been a "stunt" if lots of lower courts had rejected it as frivolous, until some lucky lawyer finally found a court that took a different view? Do you think the early proponents of what became the XIX Amendment were engaged in a "stunt" -- surely, when suffrage was first proposed, conventional opinion regarded it as an even nuttier proposal than a gay marriage amendment -- that over time somehow lost its quality of "stuntiness"?

Here as on many other topics in the law, an ostensible argument about what is acceptable or proper is just serving as cover for a political opinion. Just a few threads ago, you were bemoaning the frequency with which law professors offered a political answer when asked a legal question by a reporter. Well, there seems to be something similar going on here.

As for all the noise about the motives of Santorum and others in raising the issue, OF COURSE politicians have political motives for what they do. That's not a news flash and it's not a big deal. They also often have other motives as well, and undoubtedly Santorum has lots of motives for the position he has taken here -- political, constitutional, social, religious, etc. So what.

If one believes that the constitution is being hijacked to serve social agendas, for the purpose and with the effect of precluding the normal process of resolving divisive issues through the political branches, as Santorum clearly does, then it seems obvious, at least to me, that a legislature empowered to propose constitutional amendments has every right and perhaps a duty to consider exercising that power. Calling it a "stunt," as many now do, is just an effort to delegitimize discussion.

Santorum's complaint about "why is this even an issue now?", in context, is his way of saying that it was a "stunt" for a few judges to force the country to deal with this and similar "social values" issues in constitutional terms. Many will disagree with Santorum's view on that score. But on any rational scale of "stuntiness," I think Santorum's position about which institution under the constitution should decide such issues -- courts or legislatures -- is much to be preferred.

I don't have much interest in discussing the merits of gay marriage, other than noting that I don't think this is an issue any court would be wise to constitutionalize, but it strikes me as offensive to try to rule out half of that discussion, by denigrating those who raise it, because you hold a contrary political opinion on the merits.

Sloan: The Nebraska amendment was overturned not merely because it defined marriage as between one man and one woman. The amendment said "The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska” which was deemed so broad that it would prohibit gay people from accessing the political process to attempt to obtain legal protections, even things as mundane as health care decisions, living expenses, funeral arrangements, or hospital visitations. There is no legitimate reason for effectively barring gay people from any legislative recourse to secure these kinds of rights other than getting their own constitutional amendment.

The real issue is that there is a very likly possibility that the federal judiciary will discover in the U.S. Consititution a right to gay marriage.

I'm no constitutional scholar, but isn't the whole purpose of the Constitution that it assumes that people start off with all rights, with the text of the document denoting specifically what rights we do not have - and then it specifically leaves it to the states to decide what other rights to abridge?

So - just as there is no specifically defined right in the Constitution for me to wake up, smoke a cigarette and eat some wheaties for breakfast, I retain that right nonetheless, unless my state has taken it away from me through their set of laws. (and living in New York City, I wouldn't be surprised if that was the case, but I digress..)

In fact, I would venture to say that the Constitution provides more or a right to gay marriage (or at least the right for states to decide whether or not to allow it) than a right for the federal government and the supreme court to be involved in marriage AT ALL.

I'm not sure I entirely agree with MadisonMan ("Heads are dropping out of shame for the shamelessness of it"); I would suggest that heads drop, as much as for any other reason, because of the sheer futility of it. The bill will not pass; it will not come close to passing. If, for some bizarre and unforeseeable reason, it did pass Congress, it would never be ratified. To ask the Senate to spend six hours debating this is to ask a quorum of Senators to waste six hours of their lives (and a not inconsequential amount of taxpayer money). This whole business is masturbatory; it's an affront to a Senate that has better things to be spending its time on.

I'm not just saying this because I oppose the FMA. The fact is this will not pass. If you want it to pass, I'd say to yu that it's good to want things, but you will not get this, and I say that without meaning to be condescending, but this isn't about politics, its about math. If it can't pass and won't pass, it's irrelevant to ask whether it should pass.

I guess I am over the stuntiness of the whole thing. Nearly my whole life, any attempt to modify Social Security has been characterized to old people as the "Republicans are going to make you eat dog food" or something equally stupid.

Waste of time? Maybe, I think it could be worse though, they might actually pass a bill or something, how often does that make things better? Oh and don't even get started on the hours and hours spent trying to characterize Sam Alito as the end of civilization.

The assumption must be that these folks are too dumb to see what a hollow stunt it is.

These are the same people that believe that the Earth is 6000 years old and that evolution is fiction. So yes, most of them are that dumb.

I'm getting tired of this debate. Glad I live in a city where I never have to come into contact with these people. Now I wish they would just do the same and stop invading my neighborhood with their bad hair and bad clothes.

Perry, I think you are right. The Court would say that the states have no right to restrict marriage just to a man and a woman. Or they may say that if gay marriage is allowed in one state, it must be recognized in all states (overturning DOMA).

Many judges are prepared to do this because they think it is morally wrong to deny gays equality, i.e., the right to marry in the same manner as heterosexual couples are.

"We have no government armed with the power capable of contending with human passions, unbridled by morality and true religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." - President John Quincy Adams, in an address to military leaders on October 11, 1798

"Waste of time? Maybe, I think it could be worse though, they might actually pass a bill or something, how often does that make things better?"

I don't see where the "maybe" comes into play. I will take the FMA seriously when its proponents bring forth a list of the 38 states that will ratify the amendment.

There are enough blue states that any conservative attempt to amend the Constitution will fail, and there are enough red states that any liberal attempt to amend the Constitution will fail. I think that's actually quite healthy, even if it works against my own interests in some manner (I would love to end the protracted horror of Roe by putting a right to life into the Constitution once and for all, but the sadness at lacking the votes to do so is tempered somewhat by knowing I have the votes to prevent the other side from a post-hoc legitimization of Roe).

"Many judges are prepared to do this because they think it is morally wrong to deny gays equality."

Can you please point me in the direction of one judge that, in the course of saying anything about gay marriage, says the result he reached was because "it is morally wrong to deny gays equality"?

In a previous comment you lamented that we have cases like Dred Scott. My (admittedly fading) recollection of that case is that, from a legal and constitutional framework, it was decided correctly. Did you want the justices to inject their morality there but not here?

Jim:"My (admittedly fading) recollection of that case is that, from a legal and constitutional framework, [Dred Scott] was decided correctly."

Hardly. Dred Scott is rightly recognized as the progenitor of the doctrine of "substantive due process", the doctrine that would later be used by both conservatives (see, e.g., Lochner v. New York) and liberals (see, e.g., Griswold v. Connecticut) to enforce their own political and moral views on the country.

The purpose of this was to fail which would (republicans hope) galvanize the base to come up with a bunch o' new anti-gay initiatives that would draw them to the polls in november. The thinking is that once there to affirm whatever it is they think they're affirming, they'll also vote for enough republicans to keep the house and senate. I wouldn't be surprised if it works.

When was the last time they put the "Right to life" amendment on the Senate's (or House's) calendar for a vote? I honestly can't remember.

Here are the explanations that I came up with for why they have brought this amendment up and not the "Right to Life" amendment:

1. They believe gay marriage is worse than abortion.2. They believe more Americans believe gay marriage is worse than abortion. (Quite possible, incidentally.)3. They believe they "lost" the Roe fight so they are trying to cut it off by nationalizing an issue that had previously been left to the states.

Are there other reasons you can think of to push the anti gay marriage amendment and not to push the right to life amendment?

Jim,There are amendments introduced in every Congress, but if pressed, I really couldn't tell you when the last one made it onto the floor.

I'd add to your list that, first, as a corrollary to your (3), that the mood is bullish enough that we think the fight on Roe is almost won (which I think is true, but it's not likely to be the reason), and second, I think a lot of Republicans are terrified of what Jeffrey Rosen is currently talking about in The Atlantic, "The Day After Roe". I will talk more about Rosen's piece sometime in the next couple of weeks, I think it has some serious holes, but I don't think he's wrong that a lot of establishment Republicans fear the consequences of winning the abortion fight.

I'm sure there are a lot of other, more cynical, reasons to push the FMA, just none that readily jump to mind. To some extent, though, you have to react to what's before you. The gay marriage controversy wasn't made into a controversy by the GOP, it was made into a controversy by the MASC, Mayor Newsom and some sections of the homosexual community, so to some extent, it does seem to me that the pandering over the FMA and immigration isn't so much the pander of choice as the pander that is demanded by the base. These simply happen to be the hot issues of the moment, which means that your average panderer has to pander to demand.

If this was really a worry about what federal judges might do, it would be drafted so as to merely take away their power to interpret the U.S. Constitution to reach this result. It isn't. It extends itself to the legislature as well as the judiciary, and seems to apply against state as well as federal action. This is about federalizing family law, pure and simple.

Indeed, if Congress really wanted only to prevent the federal courts from overturning state constituitonal amendments and statutes banning gay marriage, it could be much more easily accomplished by stripping their jurisdiciton over the issue, as they are empowered to do by Article III.

They aren't doing that; hence, we can see what their real motivation is.

By the by, this really crappy decision will be overturned on appeal. Bill of Attainder? Give me a freaking break. I do think there are good reasons to reach this result, but they are not to be found in Article I.

"The assumption must be that these folks are too dumb to see what a hollow stunt it is"

Unless of coarse your part of a group that calls itself pro-family.

What exactly is wrong with a political party in power debating legislation that is important to its base?Its hardly hollow in as much as it puts politicians on record as being for or against an ultimate solution. Its already forced politicians like McCain and many Democrats to promise to vote for it only if the courts force the issue. This is of a real and discernable benefit.

I think the more important an d interesting question is why the press & pundits use every opportunity to belittle an amendment that are so overwhelmingly popular at the State level? This is no Joke and the academic liberals know it.They think this amendment is the only thing that can really stop nationalized SSM.They have bitten off more than they can chew, so need as much time as they can to chew on it. The people wont swallow though.

"I think the more important an d interesting question is why the press & pundits use every opportunity to belittle an amendment that are so overwhelmingly popular at the State level?"

There is a huge difference between a federal amendment and a state amendment; one may oppose the former while supporting the latter, as does McCain. When you are talking about the FMA, there is not only the policy-level question, there is the federalism question: not only "should homosexual marriage be illegal", but "should it be against the Federal Constitution? Because of my views on Federalism, I would be opposed to the FMA whatever my normative preference on homosexual marriage.

What is wrong with a political party that is in power debating legislation that is important to its base? In the abstriact, nothing, if that legislation actually has a snowball in hell's chance of passing. The FMA does not; it cannot and will not ever marshall the requisite number of states needed for ratification. It is therefore a collossal waste of a finite resource - time - that could be better spent on something productive that is also important to the base, such as confirming the President's nominees, or pushing legislation that might actually pass.

Even leaving federalism to the side, there are good reasons to be skeptical of highly specific morality amendments...they haven't been durable in the past, and they needlessly stultify the normal political process.

It would have been harder for Marshall to announce that it was a constitution he was expounding, if he had been interpreting a proscribed list of curse words. Or the FMA. This is hardly Free Speech, Due Process or Equal Protection we are talking about.

But then again, neither was the 3d Amendment...but I guess that is inoffensive enough to be durable.

The amendments at the state level are hardly popular. Get real and look at the turnout to, say, Texas' amendment. Governor Perry crowed about how such an overwhelming majority had approved it. Craftily leaving out, however, that 17%, yes that's SEVENTEEN PERCENT Of the state of Texas showed up at the polls.

People who don't bother voting have themselves to blame, and that's a shame in and of itself. But when 17% of the people of a state can decide the fate of all, enshrining bigotry into a document nearly impossible to change even should sentiments change?

As an aside, the objection to gay marriage has DROPPED 10 points since 2004. Yep, let's lock in our religious, Christianist intolerance into a civil document while the rest of the majority shifts their viewpoint and becomes more tolerant and accepting of the concept. This is beyond the job gay people have to reasonably show that they need to be part of the solution. And that is happening. Much to the chagrin of Santorum, Allard and their ilk.

So among the states, gay marriage amendments are not that popular. The polls prove it, as does the freakin annoying urban legend of the "value voter" from 2004. It's a base driving tool, shamelessly used to drive them to the polls. Sick and sad, yet likely won't work in 2006.

The fact that the GOP couldn't even muster a majority today to shut off debate is telling. Perhaps Jon Stewart's interaction with Bill Bennett and the subsequent disastrous performance by Bennett exposes some reasons why.

I agree, to the extent that I think that the real protections of - the really important parts of - the Constitution are the structural parts. That seems to be a real difference between those with what I suppose we'll have to label "liberal" judicial views vs. "conservative" judicial views: liberals are mainly obsessed with the rights-bearing sections, while conservatives think of the primary Constitutional protections as stemming from the structural provisions.

Needless to say, I think the "liberal" views is wrong. One may go back and read the various Constitutions of the Soviet Union (or, for that matter, the proposed EU "constitution", and I use the term under protest), and they contain these magnificent, soaring rights-bearing provisions that make our Bill of Rights look positively niggardly. And what did they amount to? Squat. Why? Because simply announcing a right is meaningless; it is the creation of a structure

That's why I don't understand liberals who claim that there are massive majorities in favor of abortion, and yet quake in their boots at the prospect of overruling Roe. The primary protection of the right to abortion isn't the Supreme Court's say-so, it's the huge majorities who support abortion. In fact, since Roe is not only meaningless but an unnecessary flashpoint, I would think that any liberal who honestly believes there is a "majority for choice" would love to see Roe overturned. That this is not the case suggests to me a credibility problem: it means they know that their rhetoric is hollow, and that the vast majority of the public disagrees with Nan Aron about abortion as much (if not more) than they disagree with me.

The genuis of the constitution isn't that it says this right is protected and that right is protected, it's that it sets up a structure which allows us to control the manner in which we're governed. I wouldn't trade that for the most expansive bill of rights imaginable.

Does that make me conservative? I don't think of myself as such (although I might be a judicial conservative and a political liberal). I think there is a liberal tradition of thought in which the structural constitution is pretty important -- see Ely, Redish, etc. But that's mainly semantics. We obviously agree that in some ways, procedure is more important than substance, where regulating a government is concerned.

I'm an abortion rights supporter, but I often wonder if Roe has done that cause more harm than good. I do think you overstate what ought to be our position -- obviously a belief in a nationwide pro-Roe majority can coexist with many individual states where there is not one. An abortion rights supporter might well say that they would prefer to have a nationwide prohibition, because of the harm to women (especially poor women) caused by any state prohibitions. See, e.g., South Dakota.

I don't like Roe as a constitutional decision. I don't like SDP, and I doubt that the real textual protections for unenumerated rights (P or I clause, maybe 9th Am.) can support novel rights, as opposed to widespread or traditional rights. I also think that Roe halted a pretty strong movement towards legalization of abortion at the state level, and that it antagonized conservatives and may have set the liberal cause back in the long term.

I doubt (although I know you think differently) that it would be overruled. If I was to engage in the horribel mistake of trying to predict the future, I'd hazard that the court will keep chipping away at Roe until it is no more than an empty guarantee. O'Connor & Kennedy basically opened the door to that in Casey. This will enable the judges to get what they want, without formally overruling past precedent.

I'm not a Constitutional scholar either, but I have always felt that one of its strengths is the protection of minorities from the tyranny of the majority. The percentage of people in the country who favor or oppose gay marriage is meaningless to me. Judges theoretically don't make decisions that way. It's always easy to find a bloc of people who are willing to take away someone else's rights, particularly if they feel it's an issue that will never effect them. I'm sure if in the days after 9/11 an amendment had been introduced stripping all Muslims of citizenship, it would have enjoyed a lot of support, although probably not a majority. That's why the amendment process presents such high hurdles, and why our elected representatives supposedly can apply a more sober and less emotional approach to the process. That's also why so many people find this whole process a ridiculous diversion. When is the last time the Senate devoted three days of debate to Iraq? I recognize that there is a lot of mundane business conducted in the Senate, and it's not all going to be about Iraq, but three days?

And Nicky, your analysis of the Senate races smacks of more than a little wishful thinking. The Republicans want this measure on the ballot so their natural constituency will turn out to vote, and in the meantime vote for Republican candidates, as well (particularly since there is such a fear that Republicans will stay home in disgust.) If blacks in Maryland turn out to vote on gay marriage, it doesn't naturally follow that they have become Republicans and will now vote for Steele. If they want to cast their vote for a black candidate, then their presence in the voting booth may help Steele. But it won't be because they have adopted Republican values.

And in New Jersey, what signs have you seen that Catholic voters are "very prepared to continue (their) drift towards the Republican party?" The Republicans got some good spin with all of the theatrics about Alito's wife. But the problem with cheap stunts like that is that they really don't have any staying power with the electorate. Despite all of the Republican huffing and puffing at the time, I really doubt that the Alito hearing is going to have much of an impact on the voters.

And as for Casey, the only hard decision he's goiung to face is what to eat at his victory breakfast.

Most proponents I read and hear argue that this amendment is to protect families. The merits of this are silly. If you want to protect "families" (i.e. children) from gay marriage just make an amendment that prohibits gays from adopting. Even with a marriage amendment individual gays can adopt and have children via artificial insemination.

This amendment will never, ever pass. Not now, not ever. The US is becoming more and more tolerant of homosexuality. Just look back 20 years, homophobia was far worse back then.

Pew does polls on this all the time. In a poll done in '03 (when opposition to gay marriage was peaking due to the Mass courts) people up to about age 30 are split 50-50 as to whether gays should be allowed to marry. As you get older, people in their 40s and 50s are twice as likely to oppose gay marriage. In a poll done this year 58% of 18-29 year olds favor gay adoption; compared to 44% for 50-64 year olds.

www.pewforum.org/publications/surveys/religion-homosexuality.pdf

people-press.org/reports/display.php3?ReportID=273

I suspect that this is not one of those issues on which people get more conservative as they get older. Therefore this issue, while heated now, is basically over. Forty years from now people currently 30 will be 70 and will still be split 50-50. My guess is over the next 40 years younger people will become more and more supportive of gay rights.